The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On July 27, 2006, the United States filed a two-count Indictment charging Defendant Rafael Macias-Encinas ("Defendant" or "Macias-Encinas") and other associates with conspiring to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and with possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841 (a)(1). (Doc. No. 16.) On August 28, 2006, MaciasEncinas moved to suppress statements and evidence due to an illegal stop, an illegal arrest, and an illegal search. (Doc. No. 34.) On March 26, 2007, the Court denied Defendant's motions to suppress. (Doc. No. 94.) On April 12, 2007, Defendant entered a conditional plea of guilty to Count 2 of the indictment, reserving his right to appeal the Court's denial of his motions to suppress. (Doc. No. 107.)
On August 19, 2008, the Ninth Circuit panel affirmed the Court's finding that reasonable suspicion supported the stop of Macias-Encinas and that probable cause existed to arrest him after the officer's discovered the marijuana, but remanded the case to this Court, "to conduct a hearing that will enable it to determine whether the officer's diligently pursued their investigation and whether the delay was reasonable under the circumstances." United States v. Macias-Encinas, No. 07-50353 (9th Cir. Aug. 19, 2008).
For the remand, Stewart Young appeared on behalf of the United States and Shaun Khojayan appeared on behalf of Macias-Encinas. The Court held a hearing on January 16, 2009, ordered the parties to submit briefing summarizing their positions, and continued the hearing to April 6, 2009. (Doc. Nos. 138-39.) On March 1, 2009, the United States filed a supplemental memorandum regarding the reasonableness of the detention and delay. (Doc. No. 144.) Defendant filed a response in opposition on March 16, 2009 and an amended response in opposition on March 17, 2009. (Doc. Nos. 145-46.) On March 23, 2009, the United States filed a reply. (Doc. No. 147.) On April 2, 2009, Defendant filed additional briefing. (Doc. No. 148.) The Court continued the hearing on April 6, 2009 to July 6, 2009 in order to give the United States an opportunity to respond to Defendant's additional briefing. The United States filed its supplemental brief on April 15, 2009. (Doc. No. 150.)
On May 22, 2009, the Court requested the parties to submit further supplemental briefing, specifically requesting the parties to brief whether all discovery matters were resolved. (Doc. No. 151.) Defendant filed his supplemental briefing on June 1, 2009, and requested discovery on the availability of narcotic detector dogs at the Calexico East and Andrade Ports of Entry on July 15, 2006. (Doc. No. 152.) On June 22, 2009, the Government filed its response to Defendant's supplemental briefing. (Doc. No. 153.)
On July 6, 2009, the Court held a hearing and granted Defendant's request for discovery on the available narcotic detector dogs at the Calexico East and Andrade Ports of Entry on the date of the arrest. (Doc. No. 154.) The Court also continued the hearing to August 31, 2009, in light of the discovery ordered.
On August 24, 2009, the United States responded to Defendant's request for discovery on the available narcotic detector dogs at the Ports of Entry.*fn1 (Doc. No. 157.) The Court held a hearing on August 31, 2009. At the hearing, the Court took the motion to suppress under submission and allowed the parties to file supplemental briefing. (Doc. No. 158.) On September 8, 2009, the United States filed supplemental briefing on the temperature at Imperial airport in the late afternoon and evening on July 15, 2006. (Doc. No. 159.) Defendant filed his supplemental briefing on September 15, 2009. (Doc. No. 160.)
After due consideration, the Court concludes that the officers diligently pursued their investigation and the detention of Macias-Encinas was reasonable under the unique circumstances of the case. Accordingly, the Court denies the motion to suppress statements and evidence.
On July 15, 2006 at around 6:00 p.m., border patrol agents observed three pickup trucks with trailers in the Imperial San Dunes near the Buttercup Campground, an area known by the United States Border Patrol to be a smuggling corridor for illegal aliens and drugs. During their surveillance, the agents observed a sand rail (a sand dune riding vehicle), mule ATVs and a single ATV being unloaded from the trailers and driven in the sand dunes. These vehicles were then loaded into the trailers and driven out of the campground and onto Interstate 8. The border patrol agents stopped the three pickups separately on Interstate 8, with the easternmost vehicles stopped 10 miles from the Buttercup Campground. Once stopped, Agent Rios asked Macias-Encinas and the driver of the vehicle, Ortiz, about their immigration status, requested to see each person's driver's license, and inspected the papers to the pickup. Another border patrol agent meanwhile circled behind the pickup and inspected it. Agent Rios asked Ortiz if he could search the vehicle, and Ortiz said no. Agent Rios then ordered Macias-Encinas and Ortiz out of the vehicle, directed them to place their hands behind their backs, and to sit down on the dirt side of the road. About forty-five minutes after being stopped, a K-9 dog unit arrived. An agent guided the dog to the rear of the pickup, to which the dog alerted. The agents discovered 285 pounds of marijuana in the vehicle.
Following a remand from the Ninth Circuit, the Court held an evidentiary hearing on January 16, 2009 on the circumstances surrounding the forty-five minute delay in procuring the Narcotic Detector Dog ("NDD"). Border Patrol Agent Joseph Scariano testified regarding the events of July 15, 2006. Agent Scariano testified that the Buttercup Campground area is approximately 160-170 miles east of metropolitan San Diego and approximately 40 miles east of El Centro. (Tr. 6:12-25.) On July 15, 2006, Agent Scariano participated in the surveillance and detention of Macias-Encinas and his associates. (Id. 11:14-20.) Agent Scariano testified that after the stop was initiated, the agents called for a canine, but did not get a response on the radio. (Id. 13:13-17.) The canine was located at a Border Patrol checkpoint located near the Arizona/California border. (Id. 13:18-14:2.) Agent Scariano testified that was the closest available canine, as the checkpoint was approximately 26 miles from where the vehicle was stopped. (Id. 14:3-5; 18:2-4.) Agent Scariano testified that he was not aware of whether there were canine units on duty at the time at the Calexico and Andrade Ports of Entry, as it was not Border Patrol that worked at the Ports of Entry. (Id. 14:6-9.) In any event, the Ports of Entry were farther away than the nearest Border Patrol checkpoint with a canine. (Id. 14:16-20.)
Agent Scariano testified that the agents radioed to the checkpoint several times to request a Border Patrol NDD to sniff the stopped vehicles. (Id. 15:24-16:9.) When no response was received from the checkpoint, one of the agents went to get the canine unit. (Id. 15:24-16:23.) Agent Scariano testified that it takes approximately 40 minutes to complete the round trip. (Id. 17:1-15.)
When questioned about alternative ways to procure an NDD, Agent Scariano testified that both the Calexico and Andrade Ports of Entry were farther from the location of where the vehicle was stopped and that he did not contact either Port of Entry for an NDD on July 15, 2006. (Id. 14:16-20; 31:2-5.) Agent Scariano testified that he had "never known anyone to ever use anything other than a canine Border Patrol dog" when an NDD is needed. (Id. 33:5-13.) This is consistent with Border Patrol procedure to procure an NDD from Border Patrol.
(Doc. No. 157 at 4.) The Border Patrol agents do not have direct communications with the Ports of Entry. In order to contact somebody at a Port of Entry, the agents would have to relay through their sector dispatch for them to give the Port of Entry a telephone call. (Id. 29:25-30:7; 31:19-23.) Additionally, the discovery confirmed that on July 15, 2006, after 7 p.m. there was only one NDD and handler at ...